DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 30 April 2019 MEMORANDUM FOR Army Review Boards Agency, Case Management Division, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for X., SSN X, AR20160012843 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 11 January 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army records of the individual concerned be corrected by issuing a DD Form 214 to show an Honorable discharge for the period of service ending 15 May 1992. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 29 August 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: X Deputy Assistant Secretary of the Army Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2019 DOCKET NUMBER: AR20160012843 APPLICANT REQUESTS: In effect, that his general discharge (GD) be upgraded to an honorable discharge (HD), based on his post-traumatic stress disorder (PTSD) diagnosis and disability evaluation by the Department of Veterans Affairs (VA). He also requests reinstatement of entitlement to the GI Bill Educational Benefits. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2013 VA disability decision FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130021575 on 5 August 2014. 2. The applicant states: a. He was a good Soldier until after he was sent overseas, separating him from his family and leaving his family no support. b. He had a daughter that he had to support, sending a $200 allotment each month for her support. c. His problems started after basic training when he was home trying to get things situated prior to being shipped out. He took an extra week to try to get his family established and situated before going overseas. d. Because of this he was considered AWOL, and when he reported to Charleston, he was issued an Article 15, and told he would be dealt with when he got overseas to his duty station. When he got overseas, the issue was never dealt with. a. e. That is when he first started dealing with depression and anxiety. He was in a new place, surrounded by strangers, separated from all family and friends. He felt lost and alone. This is when he started resorting to alcohol to try to self-medicate and deal with the depression and anxiety. f. His cousin, who was also in the Army in Germany, was there when arrived. She talked to him, helping him to cope with his issues. g. Upon his return stateside, his issues really started. His drinking got worse, and he was experiencing flashbacks and anxiety attacks. He did not know how to cope with the issues and started experiencing headaches and heart palpations. h. He kept being told by his chief that he was going to be alright, to just keep focusing on his duties and performing as he was expected to. i. He tried to be a good soldier, but was with other soldiers who did not care about doing their job duties, and because they failed to do their part, he would get written up because of their slack. He was constantly being harassed by the higher ups for not doing his duties as they wanted them done to meet their expectations, but he was doing the very best that he could in the situation. j. Although he was reassigned to Ft Riley, KS from Germany, his pay was still going overseas somewhere, but not to him so, with that happening, he was at the mercy of the other soldiers around him. They were having to look out for him as far as getting the supplies he needed, because he was not getting paid. That was humiliating for him and he would get written up for not shaving, but he did not have razors because he did not receive his pay in order to be able to buy the razors or other supplies. k. His depression, mood swings, and anxiety attacks started getting worse. He was drinking more because of the pressure. He had no control over the situations that created the stress (other soldiers being slack and him getting in trouble because of them, not getting his pay as he should have, not being able to buy his own supplies, etc.). l. He has been diagnosed as suffering with PTSD, Migraine Headaches, and Tinnitus, as service connected disabilities. These conditions were there while in service and this is what caused him to receive the general discharge. m. If his command had talked to him or offered him counselling while in service, he believes he would not have had the problems he had in the service which lead to his discharge. n. Because of this type of discharge, he lost all of his educational benefits and his whole sense of being. He wanted a lifelong career in the Army. However, after he a. was 6 and 1/2 months in Saudi Arabia, everything came to a head and he was no longer able to deal with stress of any type. o. His last Article 15 occurred on the night that a fight broke out in the dayroom He had been drinking, he fell asleep and was wakened up by the fight between his roommate and five guys. He tried to help break the fight up, and the guys left stating they were going to get their guns. In fear, he went to Dallas, TX to his roommate's mother's house. She contacted a Colonel in the Air Force and was told to stay there until he got back. They wound up at Ft Hood, TX, in confinement for a week then transported back to Ft Riley, KS, and issued an Article 15. He tried to explain to the command what happened, but they did not want to hear it. p. He is requesting his character of discharge be upgraded to Honorable, due to the affect his PTSD on his behavior. q. He is also requesting that the educational benefits he lost be reinstated. 3. The authority granted by Title 10, U.S. Code, section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, Department of Veterans Affairs (VA), or any other governmental agency. The applicant's request for reinstatement of his educational benefits falls under the preview of the VA and will not be addressed further. 4. The applicant served on active duty from 17 January 1989 through 15 May 1992, with service in Germany for 45 months and a 6-month deployment to Saudi Arabia (6 December 1990 – 15 June 1991). 5. The applicant received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 23 May 1989, for missing movement and being absent without leave (AWOL) (14 – 21 May 1989) * 18 February 1992, for being AWOL from on or about 17-28 January 1992 6. The applicant's commander initiated separation proceedings against the applicant on 28 April 1992, for unsatisfactory performance due to his two instances of AWOL, a general recalcitrance towards military authority and regulations, and failure to respond to repeated counseling. The recorded negative counseling statements are for driving without a valid driver's license on several occasions, failure to pay a billeting debt, and missing formation. 7. The applicant consulted with counsel and waived his rights and declined to provide a statement in his own behalf. 1. 8. The applicant underwent both mental and physical examinations prior to his discharge and in both cases, was deemed fit for duty or separation. Accordingly, there was no basis to process him for separation under the Physical Disability Evaluation System. 9. The separation authority approved the applicant's separation and directed he receive a GD. 10. The VA granted the applicant disability evaluations on 6 November 2013, for: * PTSD with Depressive Disorder, alcohol dependency, and marijuana abuse * migraine headaches * tinnitus 11. The ABCMR denied, on 5 August 2014, the applicant's request for an upgrade or to be shown to have been medically retired for PTSD. 12. An advisory opinion was obtained from the Army Review Boards Agency staff clinical psychologist. It was her opinion that based on thorough review of available medical records, there is no evidence that the applicant met criteria for a medical or behavioral health condition during his military service or that an undiagnosed condition mitigated his misconduct. The applicant demonstrated a propensity to go AWOL and general disregard of rules despite efforts of corrective action. This does not negate his post-service diagnosis and treatment from the VA; however, the VA conducts evaluations based on different standards and regulations. In summary, the available evidence does not support a change of characterization. 13. A copy the advisory opinion was forwarded to the applicant. He responded with a five page statement recounting his contentions of the failure of the Army to provide for his family and to afford him medical and mental health care resulting in his ultimate discharge. He contends several of the facts stated in the prior decisional document are incorrect or incomplete but offers no supporting evidence to support his contentions. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board recognizes the applicant’s PTSD diagnosis and disability evaluation by the Department of Veterans Affairs. The greater weight of the evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. The Board’s decision was further reinforced with the advisory opinion offered by the Army Review Board’s (ARBA) clinical psychologist who noted there is no evidence that the applicant met criteria for a medical or behavioral health condition during his military service or that an undiagnosed condition mitigated his misconduct. The available evidence does not support a change of characterization. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. 2. Lastly, the applicant's request for reinstatement of his educational benefits falls under the preview of the VA. Further information can be found at https://www.va.gov/education/about-gi-bill-benefits/ BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. SIGNATURE: CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 3. Army Regulation 635-40 provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating. This regulation also provides, in part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. 4. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of a service connected disability and may even initially assign a higher rating. VA ratings are based on an individual's ability to gain employment as a 1. civilian and may fluctuate within a period of time depending on the changes in the disability. 5. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.